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Tuesday, April 17, 2018

whether any case under Section 20(4) read with its proviso was made out by the parties or not? = we concur with the reasoning and the conclusion arrived at by the Courts below and accordingly hold that the tenant, having rightly suffered a decree for eviction on the ground contained under Section 20(2)(a), is not entitled to take the benefit of sub-section(4) of Section 20 because his case falls under the proviso to sub-section(4) by virtue of the fact that his son, who is member of family being a male lineal descendants as specified under Section 3(g)(ii) of the Act, has built his residential house in the same city and he is in its possession. The tenant can, therefore, shift in the said house once he is asked to vacate pursuant to eviction decree passed against him.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.5903 OF 2012
Smt. Sudama Devi & Ors. ….Appellant(s)
VERSUS
Vijay Nath Gupta & Anr. …Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1. This appeal is filed by the legal representatives
of the defendant(tenant) against the final judgment
and order dated 14.03.2011 passed by the High
Court of Judicature at Allahabad in Civil Misc.Writ
Petition No.17758 of 1998 whereby the High Court
dismissed the petition filed by the defendant and
upheld the order dated 22.04.1998 passed by the
Additional District Judge-XI, Gorakhpur in Civil
Revision No.15 of 1997 by which he dismissed the
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revision filed by the defendant and confirmed the
order dated 02.08.1997 passed by the Small Causes
Court in Small Cause Case No.42 of 1986.
2. In order to appreciate the issue involved in the
appeal, few relevant facts need to be mentioned
infra.
3. The appellants are the legal representatives of
original defendant - Chandrabhan Singh - who died
during the pendency of the civil suit whereas the
respondents are legal representatives of Parasnath
Gupta, Manager of the plaintiff-Shri Ramchander Ji,
owner of the suit house.
4. The plaintiff claiming to be the landlord of the
suit house filed a civil suit through his Manager
against the defendant-Chandrabhan Singh for his
eviction from the suit house. The plaintiff, inter alia,
alleged that Chandrabhan Singh was his monthly
tenant living in the suit house. It was alleged that
the defendant has all along been in arrears of rent
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inasmuch as he failed to pay the monthly rent from
January 1977 onwards to the plaintiff.
5. It was further alleged that the defendant paid
a sum of Rs.656.25 to the plaintiff, which the
plaintiff adjusted against part of the arrears up to
May 1980. It was alleged that despite the
adjustment being made, the arrears still remained
unpaid and default in payment of monthly rent
continued to persist and hence notice for eviction
and demand of arrears of rent was given by the
plaintiff to the defendant followed by filing of the
civil suit claiming a decree for eviction of the
defendant from the suit house and arrears of rent
against the defendant. The plaintiff sought a decreefor the defendant's eviction from the suit house onthe ground of non-payment of arrears of rent asspecified under Section 20(2)(a) of the Uttar PradeshUrban Buildings (Regulation of Letting, Rent andEviction) Act, 1972 (hereinafter referred to as “theAct”).
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6. The defendant denied the averments made in
the plaint and joined issues. One of the groundsraised by the defendant was that the provisions ofthe Act do not apply to the suit house because thesuit house is the property of the Charitable Trust.
7. Issues were framed. Parties adduced their
evidence. The Trial Court by its judgment/order
dated 02.08.1997 passed the decree for eviction and
arrears of rent. It was held that the suit is
maintainable, that the provisions of the Act are
applicable, that the defendant was a defaulter in
payment of monthly rent and its arrears, and that a
ground under Section 20(2)(a) of the Act is made out
against the defendant for his eviction from the suit
house. Accordingly, the decree for defendant’s
eviction from the suit house was passed.
8. The defendant felt aggrieved and filed a civil
revision before the Additional District Judge,
Gorakhpur. By order dated 22.04.1998, the
Additional District Judge dismissed the revision and
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confirmed the judgment and decree of the Trial
Court.
9. It may be mentioned here that one question
was also raised by the parties in the case, namely,whether any case under Section 20(4) read with itsproviso was made out by the parties or not?
10. It was the case of the plaintiff (landlord) that
the defendant is not entitled to take any benefit of
Section 20(4) of the Act to avoid the decree of
eviction passed against him under Section 20(2)(a)
of the Act because his son, who is a member of the
tenant’s family, as defined under Section 3(g) of the
Act, has built his own house in the same city and
hence the defendant’s case would fall under proviso
to Section 20(4) of the Act which would make
Section 20(4) inapplicable to the tenant. The
defendant opposed this contention on facts stating
that his son lives separately from him and hence
proviso will not apply. The contention of the
plaintiff was upheld by the Revisional Court (ADJ)
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and accordingly the eviction decree passed under
Section 20(2)(a) of the Act against the defendant was
confirmed by denying the defendant the benefit of
Section 20(4) of the Act.
11. The defendant felt aggrieved and filed writ
petition under Article 227 of the Constitution of
India before the High Court. By impugned order,
the Single Judge of the High Court dismissed the
writ petition and upheld the order of the Revisional
Court (ADJ) and also affirmed all the findings of fact
recorded by the Trial Court, giving rise to filing of
this appeal by the defendant (tenant) by way of
special leave in this Court.
12. Heard Mr. Nagendra Rai, learned senior
counsel for the appellants and Mr. Bhuvan Mishra,
learned counsel for the respondents.
13. Learned senior counsel for the appellants while
assailing the legality and correctness of the
impugned order argued only one point.
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14. Learned counsel, by referring to Sections 20(2)
(a) and 20(4) of the Act, submitted that eviction
decree passed under Section 20(2)(a) of the Act is
always subject to ensuring compliance of Section
20(4) of the Act. Learned counsel contended that the
defendant/tenant was able to prove that he is
entitled to claim benefit of Section 20(4) of the Act
whereas the plaintiff has failed to prove that the
defendant’s case fell under proviso to Section 20(4)
so as to deprive the defendant from taking benefit of
sub-Section (4) of Section 20 and avoid the decree
for eviction passed against him under Section 20(2)
(a) of the Act.
15. Learned counsel further urged that since the
defendant/tenant did not construct his own house
though his son constructed the house in the same
city but since his son was living separately from
him, the proviso to Section 20(4) of the Act had no
application to the case. It was his submission that
the defendant was, therefore, entitled to claim the
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benefit of Section 20(4) of the Act and the eviction
decree passed against him under Section 20(2)(a)of
the Act is liable to be set aside.
16. In reply, learned counsel for the respondents
supported the impugned order and contended that
it does not call for any interference.
17. Having heard the learned counsel for the
parties and on perusal of the record of the case, we
find no merit in the appeal.
18. Section 3(g), Section 20(2)(a) and Section 20(4)
of the Act which are relevant for this case read as
under :
“ Section 3(g)
“family” in relation to a landlord or tenant of
a building, means, his or her(i)
spouse;
(ii) male lineal descendants
(iii) such parents, grandparents and
any unmarried or widowed or
divorced or judicially separated
daughter or daughter of a male
lineal descendant, as may have
been normally residing with him
or her, and includes, in relation to
a landlord, any female having a
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legal right of residence in that
building
Section 20(2)(a)
(a) That the tenant is in arrears of rent for
not less than four months, and has failed to
pay the same to the landlord within one
month from the date of service upon him of a
notice of demand:
Provided that in relation to a tenant
who is a member of the armed forces of the
Union and in whose favour the Prescribed
Authority under the Indian Soldiers
(Litigation) Act, 1925 (Act No. IV of 1925),
has issued a certificate that he is serving
under special conditions within the meaning
of Section 3 of that Act or where he has died
by enemy action while so serving, then in
relation to his heirs, the words “four months”
in this clause shall be deemed to have been
substituted by the words “one year”.
Section 20(4)
In any suit for eviction on the ground
mentioned in clause (a) of sub-section (2), if
at the first hearing of the suit the tenant
unconditionally pays or tenders to the
landlord or deposits in court the entire
amount of rent and damages for use and
occupation of the building due from him
(such damages for use and occupation being
calculated at the same rate as rent) together
with interest thereon at the rate of nine per
cent per annum and the landlord’s costs of
the suit in respect thereof, after deducting
therefrom any amount already deposited by
the tenant under sub-section (1) of Section
30, the Court may, in lieu of passing a decree
for eviction on that ground, pass an order
relieving the tenant against his liability for
eviction on that ground:
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Provided that nothing in this
sub-section, shall apply in relation to a
tenant who or any member of whose family
has built or has otherwise acquired in a
vacant state, or has got vacated after
acquisition, any residential building in the
same city, municipality, notified area or town
area.”
19. Reading of Section 20(4) of the Act would go to
show that when a landlord files a suit against his
tenant seeking his eviction from the tenanted
premises on the ground of arrears of rent as
specified under Section 20(2)(a) of the Act, the Court
has a discretion to pass a decree for eviction against
the tenant, in case the Court finds that the tenant
has ensured compliance of the requirements of
Section 20(4) of the Act by depositing the rent, its
arrears and damages together with interest as
specified therein.
20. In other words, if the Court finds that the
tenant has ensured compliance of conditions
specified in sub-section (4) of Section 20 of the Act
at the first hearing of the suit filed by his landlord
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for his eviction on the ground of arrears of rent
under Section 20(2) of the Act, it is the discretion of
the Court to either pass a decree for eviction against
the tenant or relieve him from the rigor of the
eviction decree.
21. The proviso, however, provides that
sub-section(4) of Section 20 of the Act will not
apply, if it is proved that a tenant or any member of
his family, has either built or otherwise acquired the
house in a vacant state, or has got vacated after
acquisition, any residential building in the same
city, municipality, notified area or town area.
22. In our opinion, in order to attract the proviso,
three facts need to be proved. First, the tenant or
any member of his family, as specified under
Section 3(g), has either built or otherwise acquired
any residential building; Second, such residential
building is in a vacant state; and third, such vacant
residential building is situated in the same city,
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municipality, notified area or town area where the
suit tenanted premises is situated.
23. Once these three facts are proved, the proviso
would apply against the tenant disentitling him to
claim the benefit of sub-section (4) of Section 20 to
avoid decree for his eviction passed against him
under Section 20(2)(a) of the Act.
24. The main reason behind enacting such proviso
is that the tenant, in such circumstances, would
not suffer any hardship, if he is asked to vacate the
tenanted premises pursuant to eviction decree
passed against him on the ground of arrears of rent
under Section 20(2)(a) of the Act because he or any
member of his family has built house or acquired it
and got its vacant possession situated in the same
city. Such tenant can, therefore, shift in the house
of member of the family.
25. The submission of learned counsel for the
defendant (tenant) was that in cases where the
tenant's son is living separately from his
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father(tenant) in his own house then such tenant
cannot be made to suffer the eviction decree once he
complies with the requirements of sub-section(4) of
Section 20.
26. In other words, the submission was that it is
only when any member of tenant's family is living
with the tenant in the tenanted premises and if he
owns any vacant residential building in the same
city, the tenant can be deprived of the benefit of
sub-section(4) of Section 20 but not otherwise. We
find no merit in this submission.
27. In our view, the language of proviso being plain
and simple leaving no ambiguity therein, we cannot
read the words of the proviso, the way learned
counsel for the appellant wants us to read therein to
accept his submission. In our view, if such was the
intention of the legislature, then the proviso would
have been worded accordingly. Such is, however,
not the case here.
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28. In the light of the foregoing discussion, weconcur with the reasoning and the conclusionarrived at by the Courts below and accordingly holdthat the tenant, having rightly suffered a decree foreviction on the ground contained under Section20(2)(a), is not entitled to take the benefit ofsub-section(4) of Section 20 because his case fallsunder the proviso to sub-section(4) by virtue of thefact that his son, who is member of family being amale lineal descendants as specified under Section3(g)(ii) of the Act, has built his residential house inthe same city and he is in its possession. Thetenant can, therefore, shift in the said house oncehe is asked to vacate pursuant to eviction decreepassed against him.
29. The appeal thus fails and is accordingly
dismissed. The appellants are, however, granted
three months’ time to vacate the suit house
provided they deposit the entire arrears of rent till
date, if they have not so far deposited or paid to the
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respondents and also to deposit three months’ rent
by way of damages for use and occupation within
two weeks from the date of order in the Court below.
Failure to make deposit and submit an undertaking
by the appellants to this Court within two weeks to
vacate the suit premises within three months will
entitle the respondents to execute the decree
forthwith on the expiry of two weeks.